January 14, 2022 - 5:21pm
In a 6–3 decision yesterday, the Supreme Court suspended the Biden administration’s attempt to force a vaccine-or-weekly-test mandate on businesses that employ 100 or more workers.
The ruling was not directly on the merits of the case, but on whether the emergency regulation issued by the Occupational Safety and Health Administration (OSHA) should be suspended while court challenges proceed against it. That said, part of the court’s consideration in such a ruling is whether the underlying claim is likely to succeed. In ruling that it is likely to succeed, the majority signals that when they do finally hear the case, the administration will likely lose.
The opinion in NFIB v. OSHA noted that OSHA’s rarely invoked “emergency temporary standards” had been used just nine times since the law enabling them was passed in 1970, and never for anything like a vaccine mandate. Nor is that sort of sweeping power implied by the law’s text, the court said.
“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” they said. In this case, the court could find no such delegation by the legislature. “The Act empowers the Secretary to set workplace safety standards,” they wrote, “not broad public health measures.”
The holding was issued per curiam — that is, it has no named author — with three liberal justices dissenting: Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito concurred separately to note that “Congress has chosen not to afford OSHA — or any federal agency — the authority to issue a vaccine mandate.” Based on that and other factors, they would hold that even if “the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”
The court did deliver a partial victory to the administration yesterday, too, in the case of Biden v. Missouri. There the court held in a 5–4 unsigned opinion that a similar mandate that applies to workers at healthcare facilities participating in the Medicare and Medicaid programmes should remain in effect. Reasoning that the government has a longstanding practice of issuing regulations to ensure the health and safety of patients in such facilities, the majority held that the rule issued by the Health and Human Services Secretary “falls within the authorities that Congress has conferred upon him.”
Biden came to office insisting that the federal government would not make Covid-19 vaccination mandatory. In December 2020, he told reporters he would do everything in his power to encourage vaccination but could not force it upon unwilling Americans. A few months later, Press Secretary Jen Psaki confirmed that policy, saying in March 2021 that there would be “no federal mandate requiring everyone to obtain a single vaccination credential.” On July 29, Biden said: “It’s still a question whether the federal government can mandate the whole country.”
By September, they had resolved that question, in their own minds, at least. Whether the Supreme Court will agree in the end is less certain.
Kyle Sammin is the senior editor of the Philadelphia Weekly and the co-host of the Conservative Minds podcast. Follow him on Twitter at @KyleSammin.
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
SubscribeThis is why I love the American right. They think. They have ideas. That argue. They force you to make your case. Europe is intellectually and morally dead because of the Marxian assumption of ineluctable progress and historical inevitability. And because of that assumption, the left feel no compunction about using boards and commissions like OSHA in a manner massively beyond their intended purpose to control society and drive through their agenda regardless of what the voters are saying in elections. They think they know better and are validated by history. It never occurs to them that if the voters don’t want it, maybe it was a stupid idea to begin with.
I disagree and find in general terms the reverse to be true.
I concur
Then put forth an argument, Karen.
Then put forth an argument, Karen.
Great post.
Austria, Australia, Italy and a host of others…. Take note.
Do their governments have practical legal limits on what they are allowed to do and a chance of an entity enforcing those limits? If not, then this ruling does not matter to them in the slightest. They will just continue doing whatever they want.
Oh I get that, but the more noise there is, the better – for the governments and the citizens.
This should be read in the context of Freddie’s interview with the NHS’s Dr. Steve James. Nothing he said (Dr. James) seemed unreasonable in any way, no matter what position you hold. It’s supposed to be about “choice” as the people favoring abortion styled themselves–NOT pro abortion, but pro CHOICE! Is there a lesson here. I remember taking my aging mother to the doctor some years back for a flu shot, and cheekily chiding the doctor since he had not had his flu shot. I remember his response: “I will get a flu shot, but I won’t be the first in line.” He determined that he was at low risk and could afford to wait for more data. My mother, elderly, had a higher risk profile and therefore took the jab. Dr. James is merely suggesting that in the case of this vaccine, we need much more data on side effects, perhaps 20 years, as with the hepatitis vaccine. Seems reasonable.
This is a split decision. The stopping of the mandate for employers is good, BUT the other, lesser decision (it affects fewer people) is VERY bad, as it allows the nanny state to move forward in a significant way. And of course this would squarely hit thoughtful, informed people like Steve James. Sad and pathetic.
Finally a minor quibble: the author describes a per curium opinion as one with “no named author.” Fair play, this is technically correct. But it implies that if there were a “named author” that it would be correct, i.e. In an opinion issued by Justice Breyer or Chief Justice Roberts that the words were written by the “named author.” Not true! These opinions are written by twenty something boffins with no real life experience but who have sharp elbows and are good at test taking–think PPEs in the UK. Being a Supreme Court Justice–really any federal judge and most state court judges–means you have an unlimited supply of people willing to do your work for you. I am not overstating–in many cases, being a 25 year old clerk means being an “acting judge.” The judge may have the final decision on the result and sign off on the decision, but it is actually written by someone else in virtually every case. Judges/Justices are simply too important to do this…..
Is it possible for Unherd to start a serious discussion on the role of the legal profession in this country. We are told that ‘ignorance of the law is no excuse’ but we have court judgements overturned by superior courts and majority voting in some cases at Supreme court level. ( Like the example above) A book on the way Britain is governed stated that Blair’s lot passed some 28000 new laws and regulations in the decade they were in power and Parliament is still at it Perhaps it is a way of ensuring the legal lot have jobs but for the many of us it has become a farce.
This is a capital idea! The average American breaks 50 or so laws before lunch each day. There is an argument that many of these laws are ignored and should be ignored, but perhaps there is a better argument that they should be strictly enforced–to generate outrage and have them stricken.
Either way, I strongly second your idea for possible stores on the legal profession in the UK. It is likely very bad, perhaps almost as bad as the US, and this is w/o even discussion the anachronistic wigs.
Please no – I break fifty laws as I sleep, my properties are all loaded with things not legally done – like I always put in my own central heat and air conditioning with no permits, replace roofs without permitting, do additions unpermitted, I even once moved an entire house Christmas Day without a permit (all the way across town, it was an old Southern ‘Shot Gun’ cottage, 16 foot wide and 40 ft long, and had put it on a trailer before, and on Christmas had a big truck pull it across town wile the town slept…., and now it is my cottage my mother lives in……
The town and I are in a bit of a feud over some other permitting/construction issue – But I have to be always cautious at not pushing them too far as I definitely live in a proverbial glass house….. (They also mostly leave me alone as I do useful things, building and fixing properties – I am one of those needed members of a community who actually make things work.)
But so it is – if one went totally by the book everything would break down.